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From: janw@inmet.UUCP
Newsgroups: net.politics.theory
Subject: Re: Litigation
Message-ID: <28200515@inmet.UUCP>
Date: Sun, 5-Jan-86 23:02:00 EST
Article-I.D.: inmet.28200515
Posted: Sun Jan  5 23:02:00 1986
Date-Received: Thu, 9-Jan-86 17:46:16 EST
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Nf-From: inmet!janw    Jan  5 23:02:00 1986



[Mike Huybensz	...decvax!genrad!mit-eddie!cybvax0!mrh]
>How do "laws" get passed in a libertarian society?  What coerces
>someone into responding to a lawsuit or paying judgements aginst him?

A very good question. There is an extensive literature  on  that.
Defining one scheme as *the* libertarian solution would be wrong.
The way I see it, laws would be contractual obligations.
Enforcement would be private.

>> Abolish their [lawyers] privileged status - let anyone who wants plead,
>> judge and legislate, and free market will do the rest.

>With the exception of criminal cases, we already have that.  Any pair of
>litigants can select an arbiter (or any other system they want) and work
>out their differences under any system of rules they want.

>This doesn't happen much because usually one party is incapable of
>compelling the other's notice.  Not because of "lawyers privileged status."

Well, actually it *does* happen much, and is called out-of-court
settlement. And in *criminal* cases, there is plea-bargaining.

The basis for negotiation, in both  cases,  is  an  *anticipated*
court decision. Because, under the present system, *that* is what
defines the correlation of forces between the parties - the State
being  the  force majeure. Naturally, the people conducting these
negotiations, and often, in effect,  sitting  as  an  arbitration
committee,  are the legal councels for the parties. Because they,
the  lawyers,  are  the  experts   on   predicting   the   (still
unpredictable)  court  behavior.  Also because they would have to
plead the case if negotiations broke down. It is *not*  to  their
interest  to  settle  fast,  or,  as  judges  or  legislators, to
simplify the rules.

So,  effectively,  the  rules  created   by   lawyers-as-councel,
lawyers-as-judges and lawyers-as-legislators, define what occurs
out of court, as well as in.

Even the very moderate  reform  of  abolishing  lawyer  licencing
would  probably simplify and speed up justice. With more competi-
tion, lawyers and paralegals would be eager  to  please  clients;
unafraid  of being disbarred, they would find short-cuts. And new
people would bring in unlawyerly language and habits.

But of course the most harm is  done  not  by  attorneys  but  by
legislators  and  regulators.  The sheer amount and complexity of
rules breeds litigation. Privileges of lawyers are  relevant  be-
cause all this stuff is written to be understood and used by them
only. It is a web, safe for spiders, fatal to flies.

The latest bill about farmer aid has over 1300  pages.  A  farmer
and a banker are quite free to settle their loan default problems
with the local barber as arbitrator. With that bill as the  basis
for negotiation, not a real possibility.

>Arbitrartion between unions and employers is one example of where both sides
>can compel attention; polluters and sufferers don't fit that criterion.

You are quite right that arbitration doesn't work  when  one  of
the parties is powerless. This is a point that needed to be made.

Other relevant points are:
- Moral power is a kind of power too, and often proves decisive.
- No large group of people is powerless.
In particular, pollution victims, if numerous, have both numbers  and
moral  high  ground.  They  have *many* ways to compel attention.

		Jan Wasilewsky